Prosecutors need to be accountable for their actions

In an ethics training video leaked recently by someone at the Harris County District Attorney's Office, the trainer, Rob Kepple, seems genuinely puzzled at one point by the question of why the topic of prosecutor accountability is such a big deal these days.

"I got a theory," Kepple, executive director of the Texas District and County Attorneys Association, tells a room full of Harris County prosecutors. "I think it's because we're pretty much done with the DNA exonerations. … We've tested just about everything we can. Now you've got a whole big exoneration machine that doesn't have anyone to chew on anymore."

So, he concludes, it only makes sense to go after prosecutors. We - presumably the media, the public, the lawmakers and the Innocence Project - need something else to chew on.

I take a different view. I think prosecutor accountability is a big issue because former Williamson County prosecutor Ken Anderson - who sent Michael Morton to prison for a quarter century for a murder he didn't commit - is still sitting on a bench, wearing a judge's robe, hearing cases.

It's a big issue because the former district attorney, John Bradley - who fought the DNA testing that finally exonerated Morton - is still giving talks and applying for state jobs. Kepple is still defending him for having done nothing illegal or unethical.

It's a big issue because the former Burleson County prosecutor, Charles Sebesta - who sent Anthony Graves to prison for 18 years, 12 on death row, for murders he didn't commit - is still training officers through the Sheriffs' Association of Texas, and taking out full-page newspaper ads maintaining he did nothing wrong.

Human element

It's a big deal because prosecutors are human. They make errors. A few of them even cheat. And when they do, the results are tragic and irreversible. They rob men of liberty, and of life, and of knowing their children. And these few, dangerous cheaters are getting away with it.

In our society, people who do wrong, especially when they're employed by taxpayers, should be held accountable. I think even Kepple understands this, even if he likes to downplay the issue because of the relatively few proven cases of prosecutor misconduct.

Kepple and others at his organization even agree on the most important, basic tool that could have prevented the Morton and Graves injustices and could help prevent future ones.

Providing information

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Lisa Falkenberg

Two words: open file. It means that the prosecution's file, which includes offense reports, witness statements and other information, is open and available to defense lawyers in a timely manner. It means that defense lawyers don't have to depend on prosecutors to decide what may or may not be important enough to share.

Open-file policies are already widespread in Texas, even without a state law requiring them. A report last year by Kepple's nonprofit group could only identify two prosecutor offices - the Taylor County criminal district attorney's office and the Brazos County attorney's office - that maintained a closed-file policy out of more than 330 separate offices across Texas.

'Reciprocal discovery'

You'd think a state law simply codifying what nearly all of these offices already say they're doing would be simple. Instead, different factions are feuding about proposed legislation that would require "reciprocal discovery." That means defense lawyers would have to open up their files as well.

Defense lawyers who oppose the bill by state Sen. Rodney Ellis, D-Houston, argue that since the deck is already stacked against their clients in Texas, requiring the defense to divulge witness lists and statements, and other information would make it even harder to defend clients.

Kepple says that if we're really seeking truth, it's only fair for both sides to open their files, a policy that 48 other states already have implemented, seemingly without the catastrophic results that Fickman and others predict.

Consequences needed

I'm eager to see the next version of Ellis' legislation, which may soon be improved. Stakeholders, including Kepple, the Texas Defenders Service and some criminal defense lawyers plan to meet Wednesday with Ellis' staff to discuss the bill.

One thing is for sure, though. There need to be consequences for prosecutors who don't comply with the new law, or with the old one.

Case law known as "Brady" already requires prosecutors to turn over exculpatory evidence that could affect the outcome of the trial. But there's little consequence for prosecutors who don't do it.

Would Charles Sebesta and Ken Anderson have hidden crucial evidence if they feared getting punished?

We'll never know. But we do know this: As Michael Morton told "60 Minutes" after his exoneration, "If you're not accountable, then you can do anything."